Opinion
CASE NO. 15 BE 0047, 0048
06-10-2016
SHIRLEY NOLAN, PLAINTIFF-APPELLEE CROSS-APPELLANT, v. GREGORY W. HINZEY, EXECUTOR, DEFENDANT-APPELLANT CROSS-APPELLEE.
APPEARANCES: For Plaintiff-Appellee: Atty. Richard P. Gibbs Richard P. Gibbs & Associates 1001 South Main Street North Canton, Ohio 44720 For Defendant-Appellant: Atty. Keith A. Sommer Sommer Law Office 409 Walnut Street P.O. Box 279 Martin's Ferry, Ohio 43935
OPINION CHARACTER OF PROCEEDINGS: Civil Appeal from the Court of Common Pleas Probate Division of Belmont County, Ohio Case No. 13-CV-611 JUDGMENT: Reversed and Remanded APPEARANCES: For Plaintiff-Appellee: Atty. Richard P. Gibbs
Richard P. Gibbs & Associates
1001 South Main Street
North Canton, Ohio 44720 For Defendant-Appellant: Atty. Keith A. Sommer
Sommer Law Office
409 Walnut Street
P.O. Box 279
Martin's Ferry, Ohio 43935 JUDGES: Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Cheryl L. Waite ROBB, J.
{¶1} Both Defendant Gregory W. Hinzey and Plaintiff Shirley Nolan appeal the decision of Belmont County Common Pleas Court, Probate Division, granting summary judgment for Nolan in a will contest case. Based on a default judgment entered against Defendants John and Bonnie Humphrey, the probate court found Juanita Hyest's September 30, 2013 will invalid due to undue influence. The probate court ordered Hinzey to file the prior will dated August 14, 2013 as the last will of Juanita M. Hyest. 7/1/15 J.E.
{¶2} Hinzey's appeal focuses on the probate court's use of the default judgment to grant summary judgment for Nolan. He asserts that as executor of the September 30, 2013 will, he was defending the estate and assuming the defense for all the devisees. Since he answered, the default judgment against the Humphreys is a nullity. He asserts the probate court improperly determined the September 30, 2013 will invalid without considering his evidence of no undue influence. Nolan disagrees and asserts there is no law indicating Hinzey had to defend the action and he did not defend the action for the legatees/devisees.
{¶3} Nolan's appeal concerns the last paragraph of the probate court's summary judgment order - the order requiring the prior will be filed. She contends the prior will should not be admitted and the estate should pass through intestate succession. Nolan is Juanita's niece and next of kin, but is not named as a beneficiary in the September 30, 2013 will. As next of kin, she would inherit the estate under intestate succession. Hinzey disagrees with her position and asserts the September 30, 2013 will should not be deemed invalid in its entirety, if at all. Rather, he contends that if certain bequests were the result of undue influence then those bequests would be invalid. However, instead of passing by intestate succession, those invalid bequests would pass under the residuary clause of the will. In the alternative, if the September 30, 2013 will is invalid then the prior will should be admitted.
{¶4} For the reasons discussed below, the probate court's grant of default judgment against the devisees/legates of the September 30, 2013 will, including the Humphreys, and the court's grant of summary judgment in favor of Nolan is reversed. The matter is remanded to the trial court with instructions to grant summary judgment to Hinzey. Nolan's appeal is moot by our resolution of Hinzey's appeal.
Statement of the Case and Facts
{¶5} The record discloses that Juanita executed wills on February 28, 2007; March 3, 2008; July 14, 2009; September 26, 2012; August 14, 2013; and September 30, 2013. A trust agreement dated November 15, 2006 is also in the record.
{¶6} Juanita died on December 20, 2013. A few days later her September 30, 2013 will was admitted to probate. That will bequeathed her household goods, her real estate (the farm) and her mineral interests to the Humphreys. They are also listed as receiving 1% of the residue. Nolan, the decedent's niece, was not listed as a beneficiary in this will. All three of her daughters, decedent's great-nieces, were named as beneficiaries of the residue.
{¶7} Approximately four months later, Nolan filed a complaint contesting the will. 3/10/14 Complaint. The Humphreys, Lynette Lewis, Terra Selby, Traci Torres, Sheri Jozwiak, Marie Jajesnica, Jan Jajesnica, Lafferty Volunteer Fire Department, Flushing Methodist Church, Belmont County Animal Shelter, American Cancer Society, Salvation Army, and Attorney General Michael DeWine were named as defendants. Other than Attorney General Michael DeWine, all other named defendants were beneficiaries of the September 30, 2013 will.
{¶8} In the complaint, Nolan alleged that the September 30, 2013 will was executed one day before Juanita entered the James Cancer Treatment Center. The will was executed at Hinzey's office and John Humphrey had driven her to Hinzey's office. Nolan contended the Humphreys had a confidential relationship with Juanita and had "designs" on the house, farm, and mineral rights. She claimed they exerted undue influence on Juanita. She asserted she had a close relationship with Juanita and believed she was named as a beneficiary in a prior will.
{¶9} Hinzey was not named as defendant in this action.
{¶10} Within a month of filing the complaint, Nolan filed an amended complaint. 4/3/14 Amended Complaint. This complaint is nearly identical to the first complaint. The noteworthy differences are: Hinzey, as executor, was added as a defendant; Nolan alleged Hinzey was a necessary party; and Nolan asserted she was mistakenly excluded from the will.
{¶11} The state and Hinzey were the only named defendants to respond to the compliant and/or amended complaint. 3/24/14 State's answer; 5/7/14 Hinzey answer.
{¶12} Hinzey's answer was done in his executor capacity. The first line of the answer reads: "Now comes Defendant Gregory W. Hinzey, Executor of the Estate of Juanita M. Hyest, deceased, by and through his undersigned counsel, who makes the following admissions, denials, allegations and defenses to Plaintiff's Complaint."
{¶13} The answer denied all allegations of undue influence. He denied Nolan was mistakenly excluded from the will. He denied Nolan had a close relationship with the deceased. He denied the will was invalid due to undue influence exerted by the Humphreys. He denied the deceased had an altered state of mind due to health.
{¶14} In June 2014, Nolan moved for default judgment against the Humphreys, Lynette Lewis, Terra Selby, Traci Torres, Sheri Jozwiak, Maria Jajesnica and Jan Jajesnica. A copy of this motion was sent to Hinzey's attorney.
{¶15} A few days later, the trial court granted default judgment. 6/10/14 J.E.
{¶16} During discovery, decedent's medical records, prior wills, and the 2006 trust were produced. Nolan was not listed as a beneficiary in any of the prior wills or in the 2006 trust. Nolan's deposition was also taken. The evidence derived from the deposition and produced documents were used by the respective parties to file dispositive motions.
{¶17} Nolan filed a notice of voluntary dismissal against all defendants except the Humphreys and Hinzey. 4/20/15 Notice. She then filed a motion for summary judgment asserting that undue influence was proven through the default judgment and therefore, the specific devises to the Humphreys should be struck from the will. She asserted that those devises should pass through intestate succession to her. 4/20/15 Motion for Summary Judgment. Attached to this motion was the last will of Louis Hyest, who was Juanita's predeceased husband. Louis' will gave 32.15% of his estate to Nolan; his will indicated that Juanita had a similar will. However, Louis' will specifically indicated that the wills were not mutual; either Louis or Juanita could revoke their own will at their sole discretion.
{¶18} Hinzey then filed his motion for summary judgment and motion in opposition to Nolan's motion for summary judgment arguing that in his capacity as executor he defended the will contest and as such, the default judgment against Humphreys and any other non-answering defendant was invalid. 5/6/15 Motion.
{¶19} Nolan filed a reply to Hinzey's brief in opposition to summary judgment and filed her own motion in opposition to summary judgment. 5/20/15 Opposition Brief.
{¶20} Following the May 27, 2015 hearing on the motions for summary judgment and opposition motions, Hinzey filed a response. 6/8/15 Hinzey Response. Nolan then supplemented her summary judgment motion. 6/15/15 Supplement.
{¶21} After considering the parties arguments, the probate court granted summary judgment to Nolan. 7/1/15 J.E. It stated:
As the Humphreys failed to deny the allegations that they used undue influence on Ms. Hyest, this failure and resulting Default Judgment act as admission that they did in fact and as a matter of law use undue influence on Ms. Hyest on the drafting of the will dated September 30, 2013. Therefore, any arguments of Ms. Hyests' [sic] cognitive abilities or susceptibility at the time of the execution of the Will are irrelevant due to Humphrey's [sic] own admission that they unduly influence [sic] her.7/1/15 J.E.
{¶22} After determining that the Humphreys unduly influenced the decedent, the probate court determined the undue influence invalidated the entire will. It ordered the August 14, 2013 will to be filed as the last will and testament of Juanita. 7/1/15 J.E.
{¶23} Hinzey timely appealed the decision on July 27, 2015. Two days later, Nolan also filed a timely appeal from that decision. 7/19/15 Notice of Appeal.
{¶24} Hinzey's appeal will be addressed first. His appeal raised four assignments of error that are addressed simultaneously in his brief. We will address those assignments of error in that manner also. Nolan's appeal will be addressed second.
15BE47 - Hinzey's Assignments of Error
"The Trial Court committed error in granting summary judgment to Plaintiff/Appellee against Defendant/Appellant's ruling that the Humphreys had undue influence over decedent in the making of the September 30, 2013, [sic] will based on the default judgment against Humphreys for failure to answer the complaint."
"The Trial Court committed error in failing to rule on the summary judgment motion of Defendant/Appellant that Defendants Humphreys did not exercise undue influence on decedent Hyest."
"The Trial Court committed error in not finding that Defendant/Appellant Executor Hinzey assumed the duty to defend the will when he filed the answer to the will contest which controls over the default judgment against Defendants Humphreys."
"The Trial Court committed error in finding that the September 30, 2013, [sic] will was invalid based on the default judgment against Defendants Humphreys."
{¶25} As aforementioned, the probate court granted summary judgment to Nolan on the basis the default judgment against the Humphreys was an admission they unduly influenced decedent in executing the September 30, 2013 will.
{¶26} In reviewing whether the trial court appropriately granted summary judgment, we apply a de novo standard of review, in accordance with the standard set forth in Civ.R. 56. Hudson v. Petrosurance, Inc., 127 Ohio St.3d 54, 2010-Ohio-4505, 936 N.E.2d 481, ¶ 29. A motion for summary judgment is properly granted if the court, upon viewing the evidence in a light most favorable to the party against whom the motion is made, determines that: (1) there are no genuine issues as to any material facts; (2) the movant is entitled to judgment as a matter of law; and (3) the evidence is such that reasonable minds can come to but one conclusion and that conclusion is adverse to the opposing party. Civ.R. 56(C); Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, ¶ 10.
{¶27} Hinzey argues the trial court incorrectly granted summary judgment to Nolan based on the default judgment that was rendered against the Humphreys. He contends he assumed the duty to defend the will contest action and as such, default judgment was inappropriately granted against the Humphreys. This argument was made in all of his motions for summary judgment, motions in opposition to summary judgment, and at the oral hearing on the summary judgment motions.
{¶28} Nolan counters arguing Hinzey did not indicate he was defending the Humphreys, he did not defend the default judgment even though it was served on his attorney of record, and it would be an ethical violation to defend all of the beneficiaries because they have conflicting interests.
{¶29} The arguments presented ask us to determine if Hinzey, as executor, could defend the will contest action; if so, did he defend it; and what effect does his act of defending the action have on the default judgment rendered against the Humphreys.
A. Executor Right to Defend will Contest
{¶30} The long-standing rule in Ohio is that an executor is not bound to defend a will contest. In re Estate of Szczotka, 166 Ohio App.3d 124, 2006-Ohio-1149, 849 N.E.2d 302, ¶ 15 (11th Dist.), citing Exrs. of Andrews v. His Admrs. (1857), 7 Ohio St. 143 (1857), syllabus.
{¶31} Most cases that discuss this long standing rule, do so in the context of attorney fees. Specifically, whether the executor is entitled to attorney fees if he/she successfully defends the will contest action. Szczotka; In re Estate of Zonas, 42 Ohio St.3d 8, 9, 536 N.E.2d 642 (1989) (attorney fees were generally denied if the executor had a personal interest in the will or if his actions did not benefit the entire estate); Bruckmann v. Shaffer, 108 Ohio App. 531, 534, 155 N.E.2d 491 (1st Dist.1958) (discussion of attorney fees if executor elects to defend).
{¶32} Although the case before us does not deal with a request for attorney fees, the statements made by the Ohio Supreme Court reiterating this long standing rule reinforce the position that an executor may choose to defend a will contest action.
{¶33} In Zonas, the Ohio Supreme Court held that attorney fees are only available to fiduciaries, not beneficiaries, and explained:
A fiduciary's interest in a will contest should be to preserve and protect the property of the estate. Although he may defend the will, he is not required to do so and may cast the defense burden onto the legatees and devisees. A fiduciary represents the entire estate and has the duty to distribute the estate property but should not enter into controversies among rival contestants.Zonas at 12.
{¶34} The Second Appellate District has cited the Zonas decision for the position that a fiduciary does not have a duty to defend a will contest. In re Estate of Dawson, 117 Ohio App.3d 51, 58-59, 689 N.E.2d 1008 (2nd Dist.1996). In doing so, the appellate court has also stated "there is no case law or statutory authority prohibiting the defense of a will contest; obviously the General Assembly, by the enactment of R.C. 2107.75 [Defense of questionable will taxed as costs of administration statute], at least condones, if not encourages, the defense of will contests." Id. The court then added that the statute does not condone "the actions of an executor who is obviously defending the will in an effort to benefit solely himself rather than the estate." Id. at 58-59.
{¶35} Similarly, the Ohio Supreme Court has made statements that indicate even though not required to, an executor may defend the will or may cast that burden on to the devisees:
The interest of the fiduciary in a will contest action is also to preserve and protect the property, but, in addition, to be apprised of his duty to refrain from distributing it pending the outcome of that action. Thus, the essential purpose of requiring his participation as a party is to notify him of, and to actuate his duties during, the pendency of that action. Although he undoubtedly has the right to defend the will (see
Section 2741.04, Revised Code), he has no duty so to do and may cast that burden upon the legatees and devisees.(Emphasis added. Internal citations omitted.) Hecker v. Schuler, 12 Ohio St.2d 58, 61, 231 N.E.2d 877 (1967).
{¶36} The above cases clearly indicate an executor has a right to defend the will contest action. One court has noted that an executor should take an active role in a will contest case when there is a trust involved, where minor children are involved, where he is requested to do so by contestees, where perhaps they are widely scattered and have small individual interests, and where he has special rights to defend. Skelly v. Graybill, 109 Ohio App. 277, 279-80, 165 N.E.2d 218 (5th Dist.1959). The cases cited above, however, also indicate an executor's duty in such action is to preserve and protect the property of the estate and is not to become involved in controversies between beneficiaries. Zonas, 42 Ohio St.3d at 12. The Third Appellate District has stated "If the estate itself would remain intact, but only its distribution would be affected, the executor owes no duty whatever to the estate to oppose a potential beneficiary." Beaston v. Slingwine, 3d Dist. No. 13-03-29, 2003-Ohio-6709, ¶ 13.
{¶37} Based on the above, we conclude Hinzey, as executor, had the right to defend the action. The question in this case is should Hinzey have exercised that right.
{¶38} The specific bequests to the Humphreys are for household goods, real estate, and mineral interests. The remainder of her estate is to pass through the residuary clause; the beneficiaries of that clause are widely scattered. Excluding the charities, one beneficiary lives in North Carolina, one beneficiary lives in California, one beneficiary lives in Europe (Poland), and three reside in Ohio.
{¶39} Also, the beneficiaries' interests in defending the will contest are all the same. Nolan asserts the September 30, 2013 will is invalid in its entirety and the whole estate should pass through intestate succession, as if Juanita had no will. It appears to be undisputed that Nolan is Juanita's next of kin; therefore, Nolan would get everything if the estate passed through intestate succession. If that is the case, none of the beneficiaries would receive anything. Thus, the beneficiaries' interests are the same; they want to uphold the validity of the will.
{¶40} Under these facts, Hinzey would be justified in exercising his right to defend the will contest; the beneficiaries are scattered and the controversy is not between beneficiaries, but with the next of kin that has never been named a beneficiary in any of the testator's last six wills or her trust.
{¶41} The next question for this court to decide is, did he defend the action on behalf of the legatees/devisees?
B. Did Hinzey, as executor, defend the contest action on behalf of the beneficiaries?
{¶42} Hinzey asserts he did defend the will contest action. Nolan counters that nowhere in the answer does Hinzey explicitly state that he, through his attorney, are representing the beneficiaries of the September 30, 2013 will. Thus, Nolan concludes that Hinzey did not defend the will contest action on behalf of the legatees/devisees. Furthermore, she asserts that due to ethical reasons Hinzey could not assume the defense for all non-answering defendant/beneficiaries.
{¶43} In determining whether Hinzey actually did defend the action, the contents of the answer he filed must be examined. As soon as Hinzey was named as a party to the action, he filed an answer. 5/7/14 Hinzey answer. The first line of the answer reads: "Now comes Defendant Gregory W. Hinzey, Executor of the Estate of Juanita M. Hyest, deceased, by and through his undersigned counsel, who makes the following admissions, denials, allegations and defenses to Plaintiff's Complaint." The answer denied all allegations of undue influence and allegations that were connected to the undue influence allegations. Specifically, in the complaint it was alleged that: the Humphreys had a special confidential relationship with Juanita; the Humphreys were controlling many of Juanita's affairs, including maintenance of her household, transportation, preparation of meals and assistance with other activities of daily living; and, the Humphreys exerted undue influence over Juanita in procuring the September 30, 2013 will. Paragraphs 7, 8, ad 17 of the Amended Complaint. In the answer, Hinzey did not assert lack of knowledge as to the truth or falsity of these claims, rather, the claims were denied. 5/7/14 Hinzey Answer.
{¶44} Although Nolan is correct that nowhere in the answer does Hinzey explicitly state that he, through his attorney, are representing the beneficiaries of the September 30, 2013 will, the wording of the answer indicates Hinzey was defending the legatees/devisees. If he was answering solely in his individual capacity, his answer to the allegations of undue influence and allegations that were connected to undue influence would not have been denied. Rather, he would have asserted lack of knowledge. By answering the allegations in the manner he did and given the first sentence of the answer, we conclude that Hinzey was defending the action for the devisees/legatees, which included the Humphreys.
{¶45} Nolan asserts Hinzey could not defend the action and assume the defense for all of the beneficiaries because the Ohio Rules of Professional Conduct prohibit Hinzey from representing multiple clients in the same litigation with competing interest. Nolan 9/4/15 Brief 7.
{¶46} This argument fails to provide a basis for finding that Hinzey did not assume the defense for the Humphreys and the other non-answering defendants. Assuming it would be against the rules for Hinzey to assume the defense because he would be implicitly defending all of the beneficiaries, that does not mean that Hinzey did not assume the defense. Furthermore, this court does not render decisions on whether such an action would or would not be a violation of the rules. The Ohio Supreme Court has exclusive jurisdiction to determine violations of attorney disciplinary rules. State v. Cline, 2d Dist. No. 2013 CA 51, 2014-Ohio-4503, ¶10. To engage in a discussion of whether or not this act would violate the disciplinary rules would be dicta; we have no authority to determine if something is or is not a violation.
{¶47} Therefore, based on the above, we find no merit with Nolan's argument. The answer filed by Hinzey indicates he was defending the action for the non-answering defendants, including the Humphreys.
C. Effect of defense on the Default Judgment and Summary Judgment
{¶48} "Default judgment may be awarded when a defendant fails to make an appearance by filing an answer or otherwise defending an action." Davis v. Immediate Med. Serv., Inc., 80 Ohio St.3d 10, 14, 684 N.E.2d 292 (1997). Here, there was an answer on behalf of the devisees/legatees. Accordingly, granting default judgment against the devisees/legatees, including the Humphreys, was incorrect. See generally Smith v. Summerville, 7th Dist. No. 15 MA 10, 2015-Ohio-4153, ¶ 32 (trial court's decision to grant default judgment is reviewed for an abuse of discretion).
{¶49} This determination renders the trial court's grant of summary judgment for Nolan on the basis of the default judgment erroneous.
{¶50} Our decision, however, does not mean the trial court's grant of summary judgment must be reversed. As previously indicated, we review the grant or denial of summary judgment de novo. Hudson, 2010-Ohio-4505 at ¶ 29. Accordingly, it is within our purview to review the summary judgment motions, consider the evidence attached to those motions and determine whether summary judgment was appropriate for either party.
{¶51} The claim in this case is that the Humphreys exerted undue influence over Juanita. The essential elements of undue influence are: (1) a susceptible testator, (2) another's opportunity to exert influence on the testator, (3) the fact of improper influence exerted or attempted, and (4) a result showing the effect of such influence. Estate of Everhart v. Everhart, 2014-Ohio-2476, 14 N.E.3d 438, ¶ 36 (12th Dist.).
{¶52} Each party moved for summary judgment. Hinzey argued there was no evidence of undue influence and the estate was entitled to summary judgment. Nolan argued there was evidence of undue influence and she was entitled to summary judgment in her favor.
{¶53} Attached to Hinzey's motion for summary judgment are multiple documents including prior wills, medical records, and affidavits. The prior wills are dated February 28, 2007; March 3, 2008; July 14, 2009; September 26, 2012; August 14, 2013; and September 30, 2013. In none of these wills was Nolan listed as a beneficiary. The medical records indicated Juanita was alert and oriented; her memory seemed fair to good; and her thought flow was logical and coherent. An affidavit from Tom Givens, Juanita's nephew, was also attached. He stated the last time he talked to Juanita was around Thanksgiving 2013 and she was "as clear as a bell." She was explicit that she was leaving the farm to the Humphreys. An affidavit from Maryann Droll, Juanita's acquaintance who attended church with her 4 or 5 times, indicated Juanita's cognitive abilities were fine. Droll indicated she visited Juanita in either November or December 2013 at the Cumberland Pointe Nursing Home and Juanita was lucid and clear of mind. John Humphrey's affidavit was also attached. It stated he drove Juanita to Attorney Hinzey's office on September 30, 2013, but he had no knowledge of the purpose of the meeting. He vowed that he never discussed Juanita's will with her. He attested he never had any conversation with Juanita concerning her house, farm and mineral rights. He stated that up until the last few days she was alert and did not have a weakened state of mind. Hinzey's affidavit stated that he met privately with Juanita on September 30, 2013 and at no time prior had he ever met John Humphrey. He indicated during the five years he represented Juanita, he found her to be "a very decisive person"; "not the type of person that was susceptible to undue influence."
{¶54} Nolan supported her motion for summary judgment with one page from Juanita's medical records and Nolan's own self-serving affidavit. She avowed she and Juanita had a close relationship and Juanita had promised her the house and farm, which had been in the family for generations.
{¶55} The essential elements of undue influence are: (1) a susceptible testator, (2) another's opportunity to exert influence on the testator, (3) the fact of improper influence exerted or attempted, and (4) a result showing the effect of such influence. Estate of Everhart v. Everhart, 2014-Ohio-2476, 14 N.E.3d 438, ¶ 36 (12th Dist.).
{¶56} Considering the evidence, Hinzey and the estate met its burden entitling it to summary judgment. The medical record attached to Nolan's affidavit does not indicate Juanita was susceptible to undue influence. In fact, the record indicates Juanita denied "home health or DME" and reported she was "independent at home." Furthermore, Nolan's affidavit is self-serving and does not avoid summary judgment:
A party's unsupported and self-serving assertions offered to demonstrate issues of fact, standing alone and without corroborating materials contemplated by Civ.R. 56, are simply insufficient [to overcome a properly supported motion for summary judgment]. In other words, when the moving party puts forth evidence tending to show that there are no genuine issues of material fact, the nonmoving party may not avoid summary judgment solely by submitting a self-serving affidavit containing no more than bald contradictions of the evidence offered by the moving party. To conclude otherwise would enable the nonmoving party to avoid summary judgment in every case, crippling the use of Civ.R. 56 as a means to facilitate the early assessment of the merits of claims, pre-trial dismissal of meritless claims, and defining and narrowing issues for trial.Telecom Acquisition Corp. I v. Lucic Ents., Inc., 8th Dist. No. 102119, 2016-Ohio-1466, ¶ 92, quoting Bank One, N.A. v. Burkey, 9th Dist. No. 99 CA007359 (June 14, 2000). See also Richmond Hts. v. McEllen, 8th Dist. No. 99281, 2013-Ohio-3151, ¶ 14.
{¶57} Consequently, given the evidence submitted there was no genuine issue of material fact, and Hinzey and the estate were entitled to judgment as a matter of law. No evidence was submitted to create a genuine issue of material fact that the Humphreys exerted undue influence over Juanita. Accordingly, Hinzey and the estate are entitled to summary judgment; the September 30, 2013 will is valid.
{¶58} Hinzey's appeal has merit.
15BE58 - Nolan's Assignment of Error
{¶59} The assignment of error raised in Nolan's appeal states:
"Plaintiff/Appellant alleges that the trial court committed error by its sua sponte order to have executor admit a prior will as the best evidence of testator's intent after declaring Testator's will admitted to probate to be invalid."
{¶60} The arguments raised in this assignment of error address the trial court's order in awarding summary judgment to Nolan. In that order, the trial court found the September 30, 2013 will invalid and ordered the August 14, 2013 will to be admitted. Nolan finds fault with the trial court's order requiring the August 14, 2013 will to be admitted. Nolan insists there is no will and the estate must pass through intestate succession to her.
{¶61} This issue is moot due to our resolution of Hinzey's appeal; the grant of summary judgment for Nolan is reversed. Accordingly, this assignment of error will not be addressed.
Conclusion
{¶62} Hinzey's appeal has merit. He defended the will contest action for the legatees/devisees. The trial court's grant of default judgment for Nolan against the legatees/devisees was incorrect and as such, the trial court's basis for granting summary judgment to Nolan was also incorrect. Therefore, the grant of summary judgment in favor of Nolan is reversed. In reviewing the summary judgment motions and evidence attached, we hold the trial court should have granted summary judgment to Hinzey. There is no evidence submitted that supports the conclusion that the Humphreys exerted undue influence over Juanita. Thus, the September 20, 2013 will should be deemed valid. The matter is remanded to the trial court to enter summary judgment in Hinzey's favor. Donofrio, P.J., concurs. Waite, J., concurs.